In re K.N.D.

403 S.W.3d 277

In the Interest of K.N.D., A Child.

No. 01–12–00584–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Dec. 21, 2012.

Rehearing Overruled Feb. 1, 2013.

William B. Connolly, Connolly & Shireman, LLP, Bonnie J. Fitch, Bonnie Fitch Law Firm, Houston, TX, for Appellant.

Garland D. McInnis Jr., Office of Harris County Attorney, Houston, TX, for Appellee.

Panel consists of Justices KEYES, MASSENGALE, and BROWN.

OPINION

MICHAEL MASSENGALE, Justice.

Appellant A.D. appeals the trial court's decree terminating her parental rights to her daughter, K.N.D. In three issues, the mother argues that the evidence is insufficient to support the termination of her parental rights and the appointment of the Texas Department of Family Protective Services as sole managing conservator.

We conclude that the record evidence is legally insufficient to clearly and convincingly establish that the child was removed from her mother “under Chapter 262 for the abuse or neglect of the child,” as is required to support termination under the sole ground found by the trial court, section 161.001(1)(O). Accordingly, we reverse and render judgment denying the Department's application for termination of the mother's parental rights. We affirm the remainder of the judgment appointing the Department as sole managing conservator.

Background

The Department alleged multiple grounds to support its petition seeking termination of A.D.'s parental rights with respect to K.N.D., but the trial court found only one of the predicate grounds contained in section 161.001(1). The decree at issue in this appeal was based solely on findings that the mother failed to comply with a court order after the child had been removed “from the parent under Chapter 262 for the abuse or neglect of the child,” Tex. Family Code § 161.001(1)(O), and that termination would be in the best interest of the child, id. § 161.001(2).

A.D. was 37 weeks pregnant when she became involved in an altercation at her apartment complex. She was taken to the hospital by ambulance, and she gave birth to K.N.D. that same day. The following day, a report of “Neglectful Supervision” was referred to Child Protective Services. An investigation ensued, and the following day the Department filed its original petition seeking conservatorship of K.N.D. and termination of the rights of her biological parents. In support of that petition, a CPS investigator summarized the precipitating circumstances by affidavit,¹ in which she stated:

Facts Necessitating Removal of the Child

“I have made reasonable efforts under the circumstances to prevent removal of the child but considering the immediate needs to protect the child, removal of the child is necessary.”

Present Referral / Allegation

On April 29, 2011, the Texas Department of Family and Protective Services (DFPS) (Children's Protective Services) received a referral concerning the Neglectful Supervision of [K.N.D.] by her mother, [A.D.].

It was reported that [A.D.], while 37 weeks pregnant, was involved in a domestic dispute with her two roommates resulting in her falling down and going to the hospital. It was reported that the male roommate put his hand around the female roommate's neck and chased [A.D.] causing her to fall.

Reportedly, the female roommate came to the hospital and informed a nurse that both she and [A.D.] were prostitutes and the male roommate was their pimp. It was reported [A.D.] has history with the agency where her first child, [S.L.A.D.], was placed for adoption because she could not care for the child.

Summary Conclusion

Due to concerns for the home environment, including but not limited to the domestic violence in the home, along with [A.D.'s] prior unwillingness to work services with the agency, it is being requested that the Texas Department of Family and Protective Services be named temporary managing conservator of [K.N.D.].

The investigator's affidavit also recounted her investigation, including a face-to-face interview of A.D., who denied the other woman's account and said that the man was her only roommate. She stated that the man had brought the other woman to the apartment “a few weeks” before. According to A.D., she was not involved in any physical altercation, and instead “she felt dizzy and fell down.”

The investigator spoke with several other witnesses. A hospital social worker reported that A.D. said that “she was being chased by the male roommate and he stepped on her house shoe which caused her to fall,” and that she “was being supported by the female roommate but did not mention in what capacity exactly.” According to an employee of the apartment complex, A.D. came to the apartment office and asked how she could have someone removed from her apartment. When A.D. saw the male roommate approaching the office, she left through the side door. The man chased A.D., who fell, prompting the employee to call the police. The male roommate “was escorted off the premises by the police and [A.D.] was taken to the hospital via ambulance.”

Finally, the investigator recounted her discussion with the caseworker who was familiar with A.D. due to a separate case involving her first child, S.L.A.D. The caseworker had not been aware of A.D.'s pregnancy. She advised the investigator that A.D. was “a flight risk” with untreated“mental health issues” and that she “will say that she will comply with agency recommendations, but then will not make herself available once it is time to work the services.” A.D.'s history with CPS included incidents of “medical neglect” and “neglectful supervision” of S.L.A.D. that had resulted in the very recent termination of A.D.'s parental rights as to that child.

The affidavit concluded by reiterating that the Department sought temporary managing conservatorship of K.N.D. “[d]ue to concerns for the home environment, including but not limited to the domestic violence in the home, along with [A.D.'s] prior unwillingness to work services with the agency.” The caseworker also identified the “instability of the home environment and [A.D.] as a caregiver,” and stated that “[t]here is a concern for [A.D.] being a flight risk. There is prior CPS history where she has moved before the investigation could be completed and subsequent CPS history has been validated warranting the removal of her other daughter [S.L.A.D.].”

On the day the original petition was filed, the trial court entered its order for protection of a child in an emergency and appointed a guardian ad litem for K.N.D. Fourteen days later the trial court held an adversary hearing and named the Department as temporary managing conservator of K.N.D. The Department ultimately filed its permanency plan and progress report which indicated that K.N.D.'s foster parents were willing to adopt her.

A.D. appeared at trial through her attorney, but she did not attend the proceeding in person. The only live witness at the trial was the CPS caseworker who was familiar with the cases of both S.L.A.D. and K.N.D. The caseworker testified that A.D.'s parental rights with respect to S.L.A.D. were terminated when A.D. relinquished her rights “just before trial started on that case.” She also testified that “a lady claiming to be a prostitute” came to the hospital while A.D. was giving birth to K.N.D. and told the investigator and the hospital social worker that A.D. was a prostitute and that they had gotten into a fight with a pimp. She testified that A.D. claimed at the time that she had fought with a roommate and was injured when she fell down. Given the inconsistencies in the stories, the Department investigated further by talking to the apartment manager of the complex where the events occurred. The Department learned that the person A.D. identified as a roommate was not on the lease. The apartment manager saw this man chase A.D. in the parking lot and saw him “stomping on the mother—hitting the mother.”

The caseworker testified that the cases of both S.L.A.D. and K.N.D. involved instances of domestic violence. She stated that A.D. did not have stable living conditions or stable employment, which was a concern of the Department in both cases. The caseworker specified that the only proof of A.D.'s employment received by the Department was an “intent to hire letter stating that she would be employed by [a] credit counseling service” and a pay stub reflecting a $40 payment from a home health care service. A.D.'s family service plan required her to maintain stable employment, but the caseworker opined that that A.D. was unable to support K.N.D. The caseworker testified that she believed termination of A.D.'s parental rights to K.N.D. was in the child's best interest and that the Department's plan for K.N.D. was adoption. She testified that “the domestic violence, the fight, whether he was a pimp or a roommate or whatever, endangered the child.” She further testified that the Department was concerned that “these behaviors have been going on for a long time, particularly with the men, not having a job, and et cetera, that it could endanger [K.N.D.].”

On cross-examination, the caseworker testified that she spoke to A.D. a month before the hearing. A.D.'s attorney asked, “Did she indicate having any interest in having her child returned?” The caseworker replied, “Not verbally.” She testified that A.D. told her “she just became employed working part time at a home health care firm and she's currently residing with a gentleman that she's known for about six months.” She conceded that the child was not injured by A.D.'s actions.

K.N.D.'s attorney ad litem also questioned the caseworker, eliciting testimony that “the violence going on either with the pimp, boyfriend or friend in her apartment” would endanger the child. A.D. had “gone through the family service plan somewhat” but not “sufficiently enough to set aside the potential endangerment of placing this child back with her.” The Department intended to place K.N.D. for adoption with her foster...